Marus v. Central R. Co. of New Jersey

The defendant appeals from a judgment in an action to recover damages death of plaintiff’s the alleged negligence of the defendant, his master. The action was brought under the federal Liability Act. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665). The verdict was $6,000. A motion for a new trial was denied, and the order is likewise brought up for review. The evidence in the case is very short; in fact, the respondent’s brief exceeds it in extent. The contentions of the appellant are as follows: (a) There was no> proof of negligence on the part of the defendant, (b) There was an assumption of risk by the decedent as a matter of law. (c) There was an erroneous submission to the jury of the question of the negligence of a fellow servant.

The decedent was a brakeman in the service of the defendant. The accident happened in the state of New Jersey in April, 1913, near the city of Elizabeth, shortly after sunset, about 7 o’clock. The decedent was at work as head brakeman, on a fast freight train of more than 30 cars. This train was going from Jersey City to' Allentown, Pa. On its route it stopped at a place called Elizabethport to pick up additional cars; then it proceeded on a downgrade to' Elizabeth, near which place the tracks ran under a “low bridge,” the surface of which was used by the Pennsylvania Railroad Company. The plaintiff claims that because of defective “telltales” maintained by the defendant, and through a failure of the engineer to warn him, the decedent came in contact with the overhead bridge and lost his life. The defendant offered practically no evidence, and relies here, as at the trial, upon the claimed insufficiency of the plaintiff’s case. It appears that there had been a previous trial, and a verdict for the plaintiff was set aside. The respondent urges here that he made a better case upon the new trial, through additional evidence and the submission of an additional ground of liability to the jury.

Elizabeth. One of the defendant’s employes went back upon a hand car and found the decedent’s body under the bridge, near the track upon which the train had passed, about three-fourths of the distance under the bridge. There was an injury to the decedent’s skull, bn the back of the head, over the ear, and wounds upon the arms. The man who found the body was the defendant’s servant, Galvin, and his short testimony is all that we have on this point.

The theory of the plaintiff is that the nature of the injuries, and the place where the body was found, indicate that the decedent was struck by the overhead bridge plate, before he had time to- secure a position of absolute safety, or at least that the jury was entitled so to infer from all the circumstances. The respondent cites Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86 , 87 N. E. 802 . That case, however, is not exactly the same, for there was proof there of marks on the side of the bridge indicating that it had been recently struck by some object. Here the case is silent as to any marks.

[2] The appellant contends that the evidence is too indefinite to enable the jury to do anything more than speculate as to- the cause of the decedent’s death. It urges that the cause may, just as well, have been that the decedent crouched down to avoid the bridge, and had raised his head before the bridge was cleared, or that he had slipped and fallen on the coal on the tender, and struck his head on the tender or a rail of the track when he fell to the ground. The respondent’s suggestion is that the decedent was probably inspecting the retainer on the adjoining freight car in a stooping position as the train met the bridge, and was struck by the overhead plate, which ran through the bridge on its under surface, and that his body fell off the car in a second or so after the contact. It seems to me that, while the question is not free from doubt, there was a question of fact for the jury as to all of these contentions. If there was room for a legitimate inference of fact, it was for the jury to draw it. While it is necessary, in a civil case, that the inference of liability should be stronger or more probable than an inference exempting from liability, yet it is not re

[3] This brings us to the consideration of the question of negligence of the decedent. The plaintiff contends there was a “defect” in the defendant’s appliances, in that the “telltale” was located too near the track to give “adequate and timely warning” of the approach of the train to the bridge. There was no dispute that the “telltale” was only 247 feet away from the bridge itself. This meant simply a space of 7 seconds of time on a train running 25 miles an hour. Both parties to this appeal cite a “low bridge” case in the Court of Appeals. The respondent cites Wallace v. C. V. R. R. Co., 138 N. Y. 302 , 33 N. E. 1069 . The appellant urges Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86 , 87 N. E. 802 . In both of these cases, the accidents happened in this state, and the railroad companies were governed by a specific statute as to the erection and maintenance of proper “telltales.” Chapter 439 of Laws of 1884. Here, however, the accident happened in the state of New Jersey. There is no proof as to any statute of that state; hence we must rest entirely upon the common-law duty of the defendant towards its servants.

[4] The defendant’s counsel concedes in his brief that the situation was one of grave danger to' the brakemen of its trains passing under this bridge, and required some provision for their protection; but, as the defendant had made such provision by erecting the telltale, it was not liable for an error of judgment in the location of the appliance. It cites Pearsall v. N. Y. C. & H. R. R. R. Co., 189 N. Y. 474 , 82 N. E. 752 ; Sisco v. L. & H. R. R. Co., 145 N. Y. 296 , 39 N. E. 958 , in support of its contention. Concededly, it was not the duty of the defendant to use the best known appliances; but it was its duty to use reasonable care in supplying and maintaining the appliances which it did use. I think it was the common-law duty of the defendant to provide some kind of warning to its brakemen, either by general rules as to signals or by appliances. Here it chose the latter method, and the sufficiency of the method, viewed in the light of reasonable care, was a question for the jury. The appliance, if located too near the bridge, was “defective,” within the rule of Lipstein v. Provident Loan Society, 154 App. Div. 732 , 139 N. Y. Supp. 799 , and Sullivan v. Greenhut-Siegel-Cooper Co., 155 App. Div. 391 , 140 N. Y. Supp. 263 . I think this question was submitted properly to the jury.

[5] The appellant urges that it was error to submit to the jury the question of assumption of risk by the decedent. If this question should have gone to the jury at all, the manner in which it was submitted is unexceptionable. While the evidence shows that the decedent had been employed by the defendant as a fireman and brakeman for a year, it appears, also, that he had made only from 7 to 10 trips on this branch, of the road, and that the very time of the accident was the first time he had ever been on the top of the train when, it passed under the bridge. On all the few previous trips, he had got to the engine cab before the bridge was reached. Did he know, or should he have known, the distance of the “telltale” from the bridge? It was the duty of the trial court to submit this question to the jury under the proofs in this case.

The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.